Rights of appeal on the Proposed Auckland Unitary Plan (PAUP) – FAQs

The Council’s decisions on the recommendations of the Auckland Unitary Plan Independent Hearings Panel (AUPIHP or the Panel) on the Proposed Auckland Unitary Plan (PAUP) were released on 19 August 2016.

Ryan Ashton

We summarise below rights of appeal from the Council’s decisions, and highlight some points to consider when advising submitters or other persons who may wish to challenge decisions.

Can the Council decide not to adopt the Hearing Panel’s recommendations?

The Council can accept, accept in part or reject any recommendation by the Independent Hearings Panel under the Local Government (Auckland Transitional Provisions) Act 2010 (LGATPA).

If the Council rejects a recommendation under section 148 LGATPA it must:

  • explain why; and
  • provide an alternative solution from within the scope of submissions made on the PAUP.

The Council can accept a recommendation outside the scope of public submissions but only where it is recommended by the Panel (section 148 LGATPA).

What will the decisions version of the Unitary Plan contain?

We understand the decisions version of the Unitary Plan will not include a detailed mark-up comparing the provisions to the recommended version of the Unitary Plan. The Council will release a decision report setting out each recommendation that is accepted or rejected, its reasons, and the alternative solution for each recommendation that it rejects.

Submitters wanting to understand the changes from the recommended Unitary Plan to the decisions version (and associated appeal rights) will likely need to compare at least two versions of the plan, namely the version released with recommendations by the AUPIHP, and the decisions version released by the decision of the full Council following 19 August 2016.

Who can appeal?

The streamlined plan development process under the LGATPA limits opportunities to appeal the Council’s decisions on the PAUP.

There are three situations where there can be an appeal:

  • Where the Council rejects the Panel’s recommendations, appeals on substance can be made to the Environment Court by submitters (section 156(1) of the LGATPA).
  • Appeals can also be made by any person to the Environment Court where the Panel has recommended changes to the Plan that were not raised in submissions (i.e. where the changes made were out of scope). That person must also show they would be unduly prejudiced by the Council’s decision in order to appeal (section 156(3) of the LGATPA).
  • Where the Council accepts the Panel’s recommendations that are within the scope of submissions, appeals can only be made on a point of law to the High Court (section 158 of the LGATPA).

When do appeals have to be filed?

Any appeals against the Council’s decisions must be lodged with the Environment Court or the High Court by 16 September 2016 (i.e. within 20 working days of notification of the Council’s decision).

What can a submitter do if the Council refuses to adopt the Panel’s recommendations?

This is the most straight-forward of the three appeal scenarios. The pleadings and process will be very similar to a standard plan appeal. As with a standard plan appeal, a submitter can only appeal under this section if their submission addressed the provision that was the subject of the Panel’s recommendation (section 158(1) of the LGATPA).

A submitter in this situation has full rights of appeal to the Environment Court. However, if the Council accepts the Panel’s recommendation in part the right of appeal will be limited to the effect of the differences between the Council’s alternative solution and the Panel’s recommendation.

The Environment Court will case manage all the appeals to ensure appeals are heard and determined in the “correct” order (e.g. from higher order regional down to lower order district rules). It may also be necessary for the Court to set priorities relative to High Court appeals on related points of law.

How will a person know if the changes made were out of scope?

Section 156(3) of the LGATPA appears to limit this right of appeal to situations where “the Hearings Panel had identified the recommendation as being beyond the scope of the submissions”.

The Panel’s report identifies “out of scope” recommendations, and the right of appeal is clear in these circumstances. It is not clear whether a person can identify and appeal other out of scope recommendations that are not identified in the Panel’s report.

Submitters and their advisors who participated in the mediations and hearings will be aware that numerous changes were made to the PAUP text in advance of hearings. We anticipate that there are many more out of scope changes made through the mediation and hearing processes that are not be identified as such in the Hearings Panel’s recommendations.

A person in this situation could lodge appeals in both the Environment Court (on the contended out of scope change) and the High Court (on a point of law). The Environment Court will have jurisdiction to rule on any dispute as to whether a change is (or is not) out of scope. The Council is likely to bring applications for strikeout in relation to appeals which lack a proper jurisdictional basis, or which are clearly out of scope.

The release of a “clean” copy of the Unitary Plan by both the Panel and the Council makes it difficult for a submitter to determine how the plan has changed from the notification version to the decision version. Where a submitter wishes to pursue a point on appeal it will be necessary to:

  • first, undertake a careful comparison of the notified and clean versions of the Unitary Plan to identify changes; and
  • then to cross-reference the Panel’s report to identify possible out of scope changes; and
  • finally, review all relevant submissions to identify potential out of scope changes that are not included in the Panel’s report.

The “mark ups” of the chapters of the Unitary Plan are available on the AUPIHP webpage, and will provide a helpful resource for tracing potential out of scope changes not included in the Panel’s report.

Can submitters or other persons join an appeal as section 274 parties?

Section 156 of the LGATPA provides that Parts 11 and 11A of the Resource Management Act 1993 (RMA) apply to appeals under that section. Those provisions include section 274 RMA. Accordingly, a submitter who made a submission on the subject matter of the appeal may become a party to the proceedings. Furthermore, any person with an interest in the proceeding “greater than the interest that the general public has” may also become a party.

A person wishing to become a party to the proceedings must give notice under section 274 RMA within 15 working days after the appeal period ends (i.e. by 7 October 2016).

Will a submitter or person be required to serve an appeal on the other submitters on the PAUP topic?

The usual service obligation (i.e. to serve a copy of the appeal on other submitters within five working days) applies to PAUP appeals: section 156 LGATPA. The potentially enormity of that task has been recognised by the Environment Court, and the possibility of a waiver of service was one topic at an informal conference on 9 August 2016 held to address preparation for PAUP appeals.

The Environment Court issued preliminary directions on service on 17 August 2016 granting waivers sought in an application by the Auckland Council. The Court has granted a waiver from the requirement to serve notices of appeal and section 274 notices on every person who made a submission. Instead, parties are requested to file an electronic copy of the notice (and all subsequent documents) which will be loaded on the Court’s website. The directions record that service will be deemed to be effected by the Court uploading the documents to the Court’s website.

Appellants to the High Court have a similar service obligation. It is currently unclear if the High Court will entertain a waiver of the service obligations. Submitters may be well advised to lodge a waiver of service with the notice of appeal.

What are points of law?

A point of law involves the application or interpretation of legal principles or statutes. In the present circumstances any appeal to the High Court will need to identify an error in the interpretation of the governing statutes (the RMA or the LGATPA), and show that the error materially affected the Panel’s recommendation and/or the Council’s decisions.

Potential errors include a failure to undertake a section 32/32AA evaluation (where the submission raised this matter) and failure to provide reasons for accepting or rejecting a submission.

Can other submitters join an appeal to the High Court?

Sections 300 to 307 of the RMA apply, with all necessary modifications, to an appeal under section 158. These sections include the right of any person who “appeared before the Environment Court” to give notice of an intention to appear on the appeal to the High Court: section 301 of the RMA. On the face of it this section would apply to any submitter who appeared before the Panel on the matters under appeal.

A notice of intention to appear on an appeal must be served within ten working days after the party was served with the notice of appeal.

A party to an appeal may also lodge a notice raising additional errors on other questions of law: section 305. A notice raising additional errors must be lodged with the High Court within 20 working days of the date on which the Council is served with a copy of the notice of appeal.

What happens if the High Court allows an appeal on a point of law?

The LGATPA provides in section 166 that the Hearings Panel continues to exist after it has completed hearings, including any appeals in relation to the hearing that are filed in any court. Based on this provision, it would appear the Panel has a continuing role in relation to matters which are referred back to it for further recommendations in the event of a successful appeal on a point of law.

The Council would need to make a fresh decision on any further recommendation from the Panel. The LGATPA appears to be silent on further rights of appeal from the Council’s decision. Presumably, a submitter would have the same limited rights of appeal from the Council’s decision as for the whole Unitary Plan.

Do submitters have any other rights to challenge the Council’s decisions?

The Panel’s recommendations, and the Council’s decisions on those recommendations, may also be challenged on judicial review. Section 159 of the LGATPA expressly preserves rights of judicial review to the High Court.

Judicial review is a special type of court proceeding in which a High Court judge reviews the lawfulness of a decision made by a public body. In other words, judicial review is a challenge to the way in which a decision has been made, rather than the rights and wrongs of the conclusion reached. This may be suitable where there has been a substantial error of process or procedural fairness. Examples of grounds for judicial review include breaches of natural justice (i.e. the right to be heard) and failure to take into account a relevant consideration.

The recommendations to “up zone” the Single House zones to Mixed Housing is one potential area for judicial review – although the Panel was careful to offer all sides an opportunity to be heard.

Can a submitter lodge more than one appeal on the same provision?

A submitter can lodge appeals in both the Environment Court and the High Court. In that situation the Courts will decide the relative priority of the appeals. Where a submitter files an appeal in the Environment Court contending a recommendation was out of scope, and also files an appeal in the High Court relating to the same provision, it is likely the Environment Court will first determine the scope question.

Section 159 of the LGATPA prevents a submitter filing both for judicial review and appeal to the High Court unless the two proceedings are lodged together. In that situation, the High Court will try to hear the two proceedings together.

When will the rules in the Unitary Plan have legal effect?

From the release of the Council’s decisions on 19 August, all Unitary Plan rules in the decisions version will have legal effect (under section 86B of the RMA). The existing plans will continue to have legal effect until the Unitary Plan is operative (i.e. there will be two sets of rules to consider for a resource consent application).

When will the Unitary Plan be operative? Provisions in the Unitary Plan – other than the parts relating to the coastal marine area, designations, and heritage orders – will be deemed to be approved under clause 17(1) of Schedule 1 of the RMA when the appeal period is closed and where no appeals are lodged (section 152 of the LGATPA). Where there is an appeal (or appeals) against a provision in the Unitary Plan that provision will only be deemed approved once the relevant appeal is either determined or withdrawn.

The Council must notify a date on which the Unitary Plan will become operative in part or in whole (section 160 LGATPA). 

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